Opinion
CASE NO. CV 15-7304-SJO (PJW)
09-23-2015
BRIAN KEITH LAWS, Petitioner, v. D. DAVEY, ET AL., WARDEN, Respondents.
ORDER DISMISSING SECOND AND SUCCESSIVE HABEAS CORPUS PETITION
Before the Court is Petitioner's third attempt to challenge his 1993 state conviction and sentence for murder and robbery. In 2002, he filed a habeas corpus petition, which was ultimately dismissed on the merits. See Laws v. Lamarque, CV 02-1032-RSWL (PJW), April 15, 2005 Order Accepting Report and Recommendation of United States Magistrate Judge. Petitioner attempted to appeal the dismissal, but his request for a certificate of appealability was denied by this Court and the Ninth Circuit Court of Appeals. In March 2013, he filed a new habeas petition in the district court, which was dismissed as an unauthorized second or successive petition. (Laws v. Soto, CV 13-2228-SJO (PJW), April 9, 2013 Order.) In February 2014, the Ninth Circuit dismissed his application for a certificate of appealability in that case. (Laws v. Soto, No. 13-55867, February 19, 2014 Order.)
The current Petition is also subject to dismissal as being second and successive. See 28 U.S.C. § 2244. Absent an order from the appellate court, this Court does not have jurisdiction to entertain a second or successive petition. See 28 U.S.C. § 2244(b)(3)(A). For this reason, the Petition is dismissed.
Further, the Court finds that, because Petitioner has not made a substantial showing of the denial of a constitutional right or that the court erred in its procedural ruling, he is not entitled to a certificate of appealability. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS SO ORDERED.
DATED: September 23, 2015.
/s/_________
S. JAMES OTERO
UNITED STATES DISTRICT JUDGE
Presented by: /s/_________
PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE